Judgment

N. P. SINGH, - The three appellants, Brij Mohan, Gulla and Barchia, were convicted under Ss. 396, 397, 450 and 397/149 of the Penal Code by the learned Additional Sessions Judge, who passed sentence of death u/S. 396 against each of the appellants and various terms of imprisonment under the remaining sections. The High Court confirmed the conviction and the sentence against each of the three appellants, including the death sentence. On basis of leave granted by this Court, the appellants have questioned, the legality of their conviction and sentence.

2. The prosecution case is that Chiranji Lal (P.W.7) and the inmates of his family were sleeping in their house in the night between 11th and 12th October, 1983 in village Baswa. At about 1-00 a.m., Chiranji Lal heard the ladies of his family weeping and crying. He came in his courtyard and saw two or three persons giving blows to Smt. Gora (PW-6) and Smt. Gulab (deceased). The culprits also gave blows to Chiranji Lal (PW7). In the meantime his brothers wife Smt. Saroj (PW-8) came to help them and she was also given blows. Some of the culprits were standing outside the house. One of them fired a gun shot. Hearing the gun shot, Mool Chand (deceased) rushed to the house of Chiranji Lal (PW-7). The culprits assaulted him with Pharsies and Lathies. Panna Lal (deceased) whose house was also near the house of Chiranji Lal also rushed to the spot and he was shot dead by the persons, who were standing outside the house. Smt. Shakuntla (PW-14) was also assaulted and beaten when she tried to resist the culprits. Bheru Lal (deceased) whose house is also situated nearby came near the house of Chiranji Lal and one of the culprits shot at him causing his death on the spot. The culprits thereafter decamped with tin boxes, suitcases, containing clothes, silver and gold ornaments, utensils and currency notes.

3. Ram Swroop (PW-l), the brother of Chiranji Lal, who had also rushed to the spot hearing the gun shots, saw six or seven persons going towards the Nallah with bags, boxes and guns in their hands. He found Mool Chand, Panna Lal, Bheru Lal, Smt. Gulab, Smt. Gora (PW-6), Chiranji Lal (PW7), and Smt. Saroj (PW-8) lying injured. He immediately rushed to the police outpost and lodged a report (Ex.P-l) at about 2-15 a.m. The police Bandikui registered a case on the basis of the said statement. Jai Singh (PW-34) arrived at the spot and inspected the site. The injured persons were sent to the Government Hospital. Mool Chand, Panna Lal, Bheru Lal and Smt. Gulab were declared to be dead. The post mortem examination on the dead bodies of Panna Lal and Bheru Lal was conducted by Dr. B. S. Thakuria (P.W. 15), who was of the opinion that the death was caused due to gun shot injuries. The post mortem examination of Smt. Gulab and Mool Chand was conducted by Dr. P.S. Agrawal (PW-19). He noticed multiple ante mortem injuries on the dead bodies and according to him, the cause of death was the fracture of skulls. The investigating officer found six fired 12 bore cartridges lying scattered. He also noticed foot impressions around the place of incident, on basis of which he got prepared moulds of the footprints. Smt. Shakuntla (PW-14) filed the list of looted properties. Chiranji Lal(PW-7) also gave the list of the stolen properties. The investigation continued but no clue could be found.

4. On 15-11-1983, Shashi Kant (P.W. 16), the then Station House Officer (hereinafter referred to as the SHO), Kherli, Alwar, had an encounter during the night near a hillock with some dacoits and after exchange of gun shots he arrested six persons four men and two women. The four men, who were arrested after an encounter, were the appellants Brij Mohan, Gulla, Barchia and Nahar Singh (who died during trial). After the arrest, on search, country made pistol, some fired and live cartridges, one barrel of 12 bore gun, apart from clothes and silver ornaments were found in possession of the appellants. For that a separate case